All About FMLA

The Family and Medical Leave Act of 1983 (“FMLA”) requires an employer to permit an employee to take unpaid leave for a certain amount of time. During this time, the employee’s job is protected, meaning the employee cannot be fired. Private sector employers that have 50+ employees for each working day in 20+ workweeks during the previous calendar year must comply with the FMLA. In addition, FMLA applies to ALL public agencies and local educational agencies regardless of the number of employees.

FMLA may raise a number of compliance concerns, but the main one is improperly calculating the leave an employee may take. When an employee is eligible for FMLA, the employee must take the maximum number of weeks within a single 12-month period. An employer may use four methods to establish the 12-month period, which include:

1) The Calendar Year: 12-month period from January 1 to December 31

2) Any Fixed 12 Months: the fiscal year, a year starting the employee’s anniversary date or a 12-month period required by state law

3) The 12-Month Period Measured Forward: measured from the date an employee takes FMLA leave

4) A “Rolling” 12-month Period Measured Backward: 12 months measured backward from the date an employee uses any FMLA leave. Each time an employee takes FMLA leave, the remaining leave would be the balance of the 12 weeks, which has not been used in the preceding 12 months.

The most beneficial for an employer is the “Rolling” Measurement, but this is also the most difficult to assess.

For example, E requests two weeks of FMLA leave to begin November 1. The employer looks back 12 months (November 1 to previous November 2). E has taken four weeks of FMLA beginning January 1; four weeks of FMLA beginning March 1; and three weeks beginning June 1. In total, E has taken 11 weeks (4 + 4 + 3 = 11) and is only permitted to take one week in November. E’s next FMLA leave would be January 1, after the weeks “roll off.” In January, E can take a max of four weeks. Thereafter, E would have to wait until March to take the next round of FMLA leave.

Calculations can become quite confusing – especially for employees that consistently request FMLA. As such, it is important to analyze and assess the time properly.